Two Ways to Secede in Life

By Shyamni Chokshi

Last Sunday’s Catalan independence vote was one of two such ballots in the last fortnight. The stateless ‘Kurds,’ an ethnic group spread out across the Middle East, conducted their own referendum in Iraq. Both nations’ central governments argue that their constitutions do not allow any part or group within the country to legally secede. While a general right of secession has been quite precluded under international law, there are precedents that could allow these nations to form legally.

One possible path to independence is through the right to self-determination. This right was first mentioned as a mere ‘principle’ in the United Nations Charter, but evolved into a customary international norm through the post-World War 2 decolonisation process. While many argue that the right to self-determination is limited to former colonies, the vague wording of international and regional declarations on the matter open it up to interpretation.

For example, the Declaration on the Granting of Independence to Colonial Countries and Peoples, adopted by the United Nations General Assembly in 1960, was the first to state that,

all peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

Articles 1.1 of both the Covenant on Economic, Social and Cultural Rights and the Covenant on Civil and Political Rights contain the same statement. The reference to the rights of “all peoples” to self-determination, which opens the door for potential legal secession.

The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States was adopted in 1970, and remains the most authoritative statement on the meaning of self-determination. It reiterates the rights of “all peoples” to self-determination, and while no definition of “peoples” is offered, it reaffirms that self-determination may be achieved through independence, free association or integration and “the emergence into any other political status freely determined by a people.”

Opposing self-determination is the principle of territorial integrity, which is seen as a central tenet of international law. While previous instances, such as the ICJ judgments on Namibia (1971) and Western Sahara (1975), have confirmed the right to self-determination, there is also a great deal of customary international law that supports a state staying in one piece.

Furthermore, self-determination can be divided into two types: internal and external. Internal self-determination is when the issue of independence is settled within a country with the consent of both or all parties, such as the 2014 Scottish independence referendum.

External self-determination is a little more complicated. This is usually done by the local people without consent of the country they are looking to secede from, with the support of the international community. However, for external self-determination to be realised, it should fall into one of the following categories:

Internal self-determination has been pursued, but failed (a very high bar);

The people in question are being occupied, e.g. India during British colonisation;

The people are in a trust territory, e.g. British Palestine mandate;

The people are in a non-self-governing territory; or

The people are subject to ‘alien subjugation, domination or exploitation.’

If none of the above are satisfied, the chances of external self-determination are very slim. Another possibility would be if the people wishing to secede were formally excluded from participating in their state’s government. However, with both the current and preceding President of Iraq being Kurdish, and the Catalonian state directly represented in the Spanish upper house, this path is closed to both parties.

If self-determination alone does not work, there may yet be another way – through a recognition of statehood from the international community.

Recently, through the dissolution of the former Soviet Union and Yugoslavia and subsequent creation of states such as Croatia, Lithuania and Serbia, the right of secession may be on its way to becoming customary international law. These states’ successful formation and achievement of independence is partly due to international recognition.

In 1991, many Baltic states conducted illegal, unbinding referendums on independence, just as Catalonia and Kurdistan have done, and declared their sovereignty. There was no outright support for these secessionist movements until the Russian President, Boris Yeltsin, endorsed Latvian and Estonian independence in August 1991. This was followed by swift international recognition of the sovereignty of these Baltic states which lent them legitimacy in the international arena.

While the failure of the international community to support the secession movements prior to their de facto success undermined them, the international response to Baltic independence movements, and recognition of newly formed states such as Bangladesh and Kosovo can be interpreted as the beginning of a pattern of state practice endorsing secession movements.

So listen up Catalans and Kurds, like most things in life, if you want to secede you need powerful friends.

Shyamni Chokshi is a Law & Society and Political Science & International Relations student at UWA and hates when people ask her to tell them her majors – it’s such a mouthful, man.

2 thoughts on “Two Ways to Secede in Life”

Since the international community is currently drawing the scope of the right to self-determination, it’s interesting that the diametric right, in this instance balancing and checking the line-drawing exercise of self-determination, actually implicates drawn lines: the territorial borders of states.

The current approach to territorial sovereignty is rather static. This is evidenced by the concept of occupation and annexation under international humanitarian law. The static approach is understandable. There is profit in the stability of a nation for both the nation and the people of that nation. Nations can maximize profits, exploit natural resources, and create laws which align with the cultural overtures of the society governed; people rely on the nation for security and the guarantee of rights, such as the right to limited self-determination. The international community also benefits from that stability in observable ways: the legitimacy of longstanding treaties and agreements between stable nations, and coordination with predictable actors on the global stage. The old adage, “Better the devil you know than the devil you don’t,” certainly seems to apply when arguing for strong territorial boundaries which guarantee political continuity.

However, a static approach to territorial sovereignty demands that self-determination be observed only to the point that the health and vitality of the state itself is threatened. Secession then becomes a symptom of some sickness within the territory. The borders which take their rigidity from this unchanging form of territorial sovereignty renders internal self-determination possible only where a nation state does not feel threatened by that self-determination. At best, this approach prioritizes majority consent of entire peoples within territorial boundaries, thus reducing the need for internal secession; at its worst, this approach posits that nationalism supersedes the right to self-determination regardless of whether self-determination seeks to remedy the tyranny of the minority or the under-representation of the minority.

The results are plain. “Those who make peaceful revolution impossible will make violent revolution inevitable,” (quote attributed to Former President John F. Kennedy). Civil wars ensue where peaceful, internal self-determination cannot be realized. The threat of internal revolution is not always deterrent enough from war (the U.S. Civil War is a perfect example). That failure of internal self-determination which opens the state to external self-determination also exposes that state to the potential that larger powers use the civil war to play out proxy wars (Syria comes to mind). The endorsement of secessionist movements via recognition of statehood in this light look far less like altruism by global powers and the international community, and far more like a political tool to sway proxy wars.

All that said, despite the potential blossoming state practice of recognizing the statehood of external secessionist regions, the practice of recognition of statehood of secessionist regions does not imply the legal obligation by other states to recognize those regions under the principle of the right of peoples to self-determination. Better evidence of opinio juris in this instance would be where states prioritize the self-determination of their own internal secessionist regions despite the principle of territorial sovereignty. It may be pessimistic, but the willingness of states to permit entire regions to faction under the strict approach to territorial sovereignty is unlikely. Call it the propensity of states toward territorial legitimacy, if you will, or maybe even the momentum of the giant machine of the state to continue operating, but the opinio juris needed to find that the right to self-determination drives the recognition of statehood of secessionist regions as crystallized customary law requires that states engage in a paradigmatic shift in the perception of state sovereignty itself. State sovereignty would need to be legitimized less by territory, more by the consent of the governed regardless of territorial boundaries. That is a step states have not taken, and it’s unlikely that states will take that step if history proves any indication.

Reblogged this on International Insights and commented:
An interesting take on the recognition of the right to self-determination as endorsement by the international community of secessionist movements by the University of Western Australia’s International Law Club…